Francis Bacon. (1561–1626). Essays, Civil and Moral.

The Harvard Classics. 1909–14.

LVI

Of Judicature

JUDGES ought to remember that their office is jus dicere, and not jus

dare; to interpret law, and not to make law, or give law. Else will it be

like the authority claimed by the Church of Rome, which under

pretext of exposition of Scripture doth not stick to add and alter; and

to pronounce that which they do not find; and by show of antiquity to

introduce novelty. Judges ought to be more learned than witty, more

reverend than plausible, and more advised than confident. Above all

things, integrity is their portion and proper virtue. Cursed (saith the

law) is he that removeth the landmark. The mislayer of a mere-stone 1 is

to blame. But it is the unjust judge that is the capital remover of

landmarks, when he defineth amiss of lands and property. One soul

sentence doth more hurt than many foul examples. For these do but

corrupt the stream, the other corrupteth the fountain. So saith

Solomon, Fons turbatus, et vena corrupta, est justus cadens in causa sua

coram adversario [A righteous man falling down before the wicked is

as a troubled fountain or a corrupt spring]. The office of judges may

have reference unto the parties that sue, unto the advocates that

plead, unto the clerks and ministers of justice underneath them, and

to the sovereign or state above them.

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First, for the causes or parties that sue. There be (saith the Scripture)

that turn judgment into wormwood; and surely there be also that turn it

into vinegar; for injustice maketh it bitter, and delays make it sour.

The principal duty of a judge is to suppress force and fraud; whereof

force is the more pernicious when it is open, and fraud when it is

close and disguised. Add thereto contentious suits, which ought to be

spewed out, as the surfeit of courts. A judge ought to prepare his way

to a just sentence, as God useth to prepare his way, by raising valleys

and taking down hills: so when there appeareth on either side an high

hand, violent prosecution, cunning advantages taken, combination,

power, great counsel, then is the virtue of a judge seen, to make

inequality equal; that he may plant his judgment as upon an even

ground. Qui fortiter emungit, elicit sanguinem [Violent wringing makes

the nose bleed]; and where the wine-press is hard wrought, it yields a

harsh wine, that tastes of the grape-stone. Judges must beware of

hard constructions and strained inferences; for there is no worse

torture than the torture of laws. Specially in case of laws penal, they

ought to have care that that which was meant for terror be not turned

into rigor; and that they bring not upon the people that shower

whereof the Scripture speaketh, Pluet super eos laqueos [He will rain

snares upon them]; for penal laws pressed are a shower of snares upon

the people. Therefore let penal laws, if they have been sleepers of

long, or if they be grown unfit for the present time, be by wise judges

confined in the execution: Judicis officium est, ut res, ita tempora rerum,

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etc. [A judge must have regard to the time as well as to the matter]. In

causes of life and death, judges ought (as far as the law permitteth) in

justice to remember mercy; and to cast a severe eye upon the example,

but a merciful eye upon the person.

Secondly, for the advocates and counsel that plead. Patience and

gravity of hearing is an essential part of justice; and an overspeaking

judge is no well-tuned cymbal. It is no grace to a judge first to find

that which he might have heard in due time from the bar; or to show

quickness of conceit in cutting off evidence or counsel too short; or to

prevent information by questions, though pertinent. The parts of a

judge in hearing are four: to direct the evidence; to moderate length,

repetition, or impertinency of speech; to recapitulate, select, and

collate the material points of that which hath been said; and to give

the rule or sentence. Whatsoever is above these is too much; and

proceedeth either of glory and willingness to speak, or of impatience

to hear, or of shortness of memory, or of want of a staid and equal

attention. It is a strange thing to see that the boldness of advocates

should prevail with judges; whereas they should imitate God, in

whose seat they sit; who represseth the presumptuous, and giveth grace to

the modest. But it is more strange, that judges should have noted

favorites; which cannot but cause multiplication of fees, and suspicion

of by-ways. There is due from the judge to the advocate some

commendation and gracing, where causes are well handled and fair

pleaded; especially towards the side which obtaineth not; for that

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upholds in the client the reputation of his counsel, and beats down in

him the conceit of his cause. There is likewise due to the public a civil

reprehension of advocates, where there appeareth cunning counsel,

gross neglect, slight information, indiscreet pressing, or an over-bold

defence. And let not the counsel at the bar chop with the judge, nor

wind himself into the handling of the cause anew after the judge hath

declared his sentence; but, on the other side, let not the judge meet the

cause half way, nor give occasion for the party to say his counsel or

proofs were not heard.

Thirdly, for that that concerns clerks and ministers. The place of

justice is an hallowed place; and therefore not only the bench, but the

foot-pace and precincts and purprise thereof, ought to be preserved

without scandal and corruption. For certainly grapes (as the Scripture

saith) will not be gathered of thorns or thistles; neither can justice yield

her fruit with sweetness amongst the briars and brambles of catching

and polling clerks and ministers. The attendance of courts is subject

to four bad instruments. First, certain persons that are sowers of suits;

which make the court swell, and the country pine. The second sort is

of those that engage courts in quarrels of jurisdiction, and are not

truly amici curiæ, but parasiti curiæ [not friends but parasites of the

court], in puffing a court up beyond her bounds, for their own scraps

and advantage. The third sort is of those that may be accounted the

left hands of courts; persons that are full of nimble and sinister tricks

and shifts, whereby they pervert the plain and direct courses of

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courts, and bring justice into oblique lines and labyrinths. And the

fourth is the poller and exacter of fees; which justifies the common

resemblance of the courts of justice to the bush whereunto while the

sheep flies for defence in weather, he is sure to lose part of his fleece.

On the other side, an ancient clerk, skilful in precedents, wary in

proceeding, and understanding in the business of the court, is an

excellent finger of a court; and doth many times point the way to the

judge himself.

Fourthly, for that which may concern the sovereign and estate. Judges

ought above all to remember the conclusion of the Roman Twelve

Tables; Salus populi suprema lex [The supreme law of all is the weal of

the people]; and to know that laws, except they be in order to that

end, are but things captious, and oracles not well inspired. Therefore

it is an happy thing in a state when kings and states do often consult

with judges; and again when judges do often consult with the king

and state: the one, when there is matter of law intervenient in

business of state; the other, when there is some consideration of state

intervenient in matter of law. For many times the things deduced to

judgment may be meum and tuum [mine and thine], when the reason

and consequence thereof may trench to point of estate: I call matter of

estate, not only the parts of sovereignty, but whatsoever introduceth

any great alteration or dangerous precedent; or concerneth manifestly

any great portion of people. And let no man weakly conceive that just

laws and true policy have any antipathy; for they are like the spirits

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and sinews, that one moves with the other. Let judges also remember,

that Solomon’s throne was supported by lions on both sides: let them

be lions, but yet lions under the throne; being circumspect that they

do not check or oppose any points of sovereignty. Let not judges also

be ignorant of their own right, as to think there is not left to them, as a

principal part of their office, a wise use and application of laws. For

they may remember what the apostle saith of a greater law than

theirs; Nos scimus quia lex bona est, modo quis ea utatur legitime [We

know that the law is good, if a man use it lawfully].

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